Americans didn’t vote for James Boasberg in last year’s presidential election, but that hasn’t stopped him from trying to commandeer Donald Trump’s job. Like almost 20 other district court judges, Boasberg became a household name when he decided to slam the door on the president’s deportation strategy, overruling the entire executive branch in a breathtaking display of judicial activism. After three months of this “judge-made law,” as John Fund calls it, Republicans have had enough.
Of course, the president is no stranger to abuse at the hands of the nation’s lower courts. “More than two-thirds of all universal injunctions issued over the past 25 years [have been] levied against the first Trump administration,” Senator Chuck Grassley (R-Iowa) points out. Instead of pausing a policy for the parties involved in the lawsuit, more benches are taking a sweeping approach, applying their judgments nationwide — and handcuffing the president from carrying out his agenda in the process.
Just in the last several weeks, the White House has been on the receiving end of temporary restraining orders (TROs) on deportation, spending cuts, the Department of Government Efficiency’s (DOGE) access to records, taxpayer-funding of woke programs, radical transgenderism, birthright citizenship, buyouts for federal workers, the elimination of DEI, and more. As law professor Howard Wasserman warns, the difference between a narrow ruling and a national injunction can be massive. “Instead of allowing many judges to reach independent judgments, they resolve the question for all courts,” he explained. “The government has little choice but to appeal, sometimes all the way up to the Supreme Court. … That’s no way to govern a country. Injunctions should provide relief to the parties who sue, not to people who don’t sue…”
And yet, Fund reminds people, “The effort to throw a judicial monkey wrench into every one of Trump’s administrative efforts has become a well-thought-out strategy on the [L]eft.” The problem, as so many legal experts — including recently, the Supreme Court’s own justices have pointed out — is that the idea is a dramatic overreach of lower court power.
“In recent years, it has become glaringly obvious that federal judges are overstepping their constitutional bounds,” Rep. Darrel Issa (R-Calif.) argued on the House floor Tuesday. “This is not a partisan issue. It may be a timely issue for this president, but that does not make it partisan.” His solution is for Congress to use its constitutional powers to regulate the courts and change the scope of district court rulings. Under his No Rogue Rulings Act, judges like Boasberg would be forced to limit their injunctions only to parties involved in the case.
A single unelected judge, Issa insists, should not be able to block, stall, or overrule a duly-elected president from enacting his agenda. On Wednesday, 219 Republicans agreed, voting to send the legislation — which is a stinging rebuke of the country’s despotic district courts — to the Senate. And yet, in a telling sign of how desperately Democrats rely on activist judges, not a single member of Minority Leader Hakeem Jeffries’s (D-N.Y.) party voted for it.
But, as Family Research Council President Tony Perkins warned on Wednesday’s “Washington Watch,” this “cuts both ways.” “They are so consumed with trying to stop Donald Trump and the policies that he is advancing” that they don’t see how this could hurt them under the next liberal administration. Live by the courts, he implied, die by the courts.
That’s right, Josh Robbins argues in his piece on NRO, “Progressives shouldn’t care about separation of powers only when Trump is president.” Fund echoed that sentiment, warning, “If the Supreme Court doesn’t curb nationwide injunctions against executive action, Congress should step in. At a minimum, it must restrict the ability of aggrieved groups to forum-shop for a sympathetic judge. … Such a reform would preserve the ability of courts to check genuine abuses of executive power and, at the same time, discourage forum-shopping by which activist groups seek ideologically sympathetic judges to advance their partisan causes.”
And while the justices have beaten back these unlawful court orders in a handful of instances this month, it all raises a bigger question — one that Acting Solicitor General Sarah Harris presented to the Supreme Court, “This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country — the President, through Article II, or the Judiciary, through TROs. The Constitution supplies a clear answer: the President. The republic cannot afford a different choice,” the Solicitor General insisted. She concluded, “A single district court cannot broadly disable the President from discharging his most fundamental duties…”
The president’s primary task is protecting Americans and advancing the country’s best interest. Yet now we’re watching activist courts do everything from curb the executive branch’s power to telling the commander in chief how to run the military — and without the barest form of accountability to the people who elected Donald Trump.
As Amy Coney Barrett replied to a question in her own confirmation hearing, “The danger of a court doing that [substituting its judgment for the executive or legislative branch] is to subvert the will of the people. … If judges… bend [statutes] to the judge’s idea of what would be good public policy, then it deprives the people of the chance to express the policies that they want through the democratic process.”
For now, the bill to rein in rogue judges heads to the Senate, where Republicans would need the support of seven Democrats to bring the legislation to the floor. Considering that not a single one voted for it in the House, it seems like a steep climb. Still, Rep. Derek Schmidt (R-Kan.) urged, “The basic policy of trying to rein in the overuse of nationwide injunctions was supported by Democrats before. It’s supported by Republicans now, and I’m hoping [this bill will] be supported by both.”
Like so many Americans, he believes it’s the president’s job to lead the country. It’s time for the nation’s courts to let him.
AUTHOR
Suzanne Bowdey serves as editorial director and senior writer at The Washington Stand.
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